Appeal No. 2004-2377
Application No. 09/201,353
The mere fact that water-based, water-resistant, non-
cementitious adhesives of the type recited in independent claims
1 and 8 through 10 were generally available, and thus known in
the art, at the time of the invention, however, does not in and
of itself afford any reasonable suggestion to substitute same for
the adhesives respectively disclosed by Moore and Edgar, even
when such knowledge is considered in conjunction with the stated
desire in each reference to provide a structure which is
resistant to water and moisture. The appellants’ statement that
the skilled person would know, or would readily be able to
determine, which of the generally available adhesives is most
suited for use in the present invention presumes knowledge of the
invention which is not evidenced by the applied references. The
only suggestion for replacing the adhesives respectively
disclosed by Moore and Edgar with a known water-based, water-
resistant, non-cementitious adhesive having sufficient tack to
rapidly secure the layer of thermal insulation to the building
sheathing stems from hindsight knowledge derived from the
appellants’ disclosure. The use of such hindsight knowledge to
support an obviousness rejection is, of course, impermissible.
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